On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4360-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Yannotti and Espinosa.
Defendants/third party plaintiffs, DirecTV, Inc. (DirecTV) and DirecTech, Inc. (DirecTech) appeal from two orders that resulted in the denial of coverage and a defense to DirecTech based upon an endorsement naming it as an additional insured. We reverse and remand for further proceedings.
The underlying personal injury lawsuit was filed in July 2005. Plaintiff Tirus Gitao alleged he was injured in September 2004 when he fell over unattended wires left in the stairway and hall of an apartment building where DirecTV broadcast satellite services were being installed. In addition to claims against the owners/managers of the building, plaintiff's first amended complaint alleged causes of action against DirecTV and DirecTech. The third count avers, in pertinent part:
2. At the time and place aforesaid, Defendants, DIRECT T.V., DIRECT TECH, INC., . . . and ACUTE SATELLITE T.V., . . . are the individual(s), partnership(s) or corporation(s) that were present at the aforementioned location installing cable television service. Said Defendants negligently, carelessly and negligently installed the cable television service causing Plaintiff to sustain serious personal injuries.
3. At all times mentioned herein, the aforementioned Defendants were under a duty to properly install the television service at said property, through their agents, servants and employees, and to use reasonable care to prevent injuries to persons lawfully present upon said property, such as the said Plaintiff.
4. Notwithstanding the Defendants' duties, and in direct violation thereof, the Defendants, through their agents, servants and employees, carelessly and negligently caused and allowed to exist thereon a negligent, unsafe, dangerous and hazardous condition, and Defendants were further negligent in failing to warn said Plaintiff as to the existence of said dangerous and hazardous condition.
The fourth count, the only other count in which these defendants are named, states in pertinent part:
2. The aforesaid Defendants, individual and/or through their agents, servants and employees, in violation of the duties placed upon them did on said date and time, and for a long time prior thereto, negligently installed the television service and negligently placed the materials needed in order to do so at said premises in a dangerous, unsafe and irregular manner, which was continued and permitted to remain in such a state, and so unguarded and unprotected as to cause, constitute and create a nuisance and a hidden trap to anyone lawfully present upon same, such as Plaintiff.
It is undisputed that the installation services at the location where plaintiff was injured were performed exclusively by Acute pursuant to a Sub-Alternative Fulfillment Service Agreement (the Sub AFSP Agreement) with DirecTech, an authorized alternative fulfillment service provider of DirecTV. It is also undisputed that no representative of DirecTech or DirecTV was present or involved in the installation.
Under the terms of the Sub AFSP Agreement, Acute was required to indemnify, defend and hold harmless DirecTV and DirecTech "from any and all costs, expenses, liability, claims, judgments, lawsuits and demands (including attorneys' fees) arising out of . . . (b) the negligence . . . on the part of any employee, agent, servant, subcontractor, or representative of [Acute] in connection with the performance of its obligations under this Agreement . . . ." Acute was also required to obtain commercial general liability insurance with limits of no less than $1 million combined single limit of liability with coverage for personal injury. The Sub AFSP Agreement also required that "the liability policies shall be primary coverage and shall name DIRECTECH, DIRECTV, their subsidiaries, employees and affiliates as additional insured's [sic]."
Pursuant to this contractual obligation, Acute named DirecTech as an additional insured on its commercial general liability insurance policy with Essex Insurance Company (Essex) for the policy period August 3, 2004 to August 3, 2005 (the Policy). The applicable endorsement, also effective August 3, 2004, identified DirecTech "as an additional insured under this policy, but only as respects negligent acts or omissions of the Named Insured [Acute] and only for occurrences, claims or coverage not otherwise excluded in the policy."*fn1 The endorsement also provided, "It is further agreed ...